Quinn v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Brodie,Lord Malcolm |
| Judgment Date | 20 September 2019 |
| Court | High Court of Justiciary |
| Docket Number | No 13 |
Lord Justice General (Carloway), Lord Brodie and Lord Malcolm
Justiciary — Evidence — Admissibility — Appellant prosecuted on basis of evidence covertly obtained by paedophile hunter group — No authorisations for use of covert human intelligence sources — Whether evidence admissible — Regulation of Investigatory Powers (Scotland) Act 2000 (asp 11), secs 5, 6, 7
Justiciary — Procedure — Plea in bar of trial — Appellant prosecuted on basis of evidence covertly obtained by paedophile hunter group — Whether entrapment
Justiciary — Review — Compatibility issue — Appellants prosecuted on basis of evidence covertly obtained by paedophile hunter groups — Whether compatible with appellants' human rights — European Convention on Human Rights and Fundamental Freedoms, Arts 6, 8
The Regulation of Investigatory Powers (Scotland) Act 2000 (asp 11) (‘RIPSA’) provides a statutory regime for the regulation of surveillance and the use of covert human intelligence sources.
The appellants were indicted separately on charges of attempted indecent communications with a child over the internet. Members of the public had set up ‘paedophile hunter’ groups to impersonate children online, in order to lure persons into making inappropriate or sexualised communications with them over the internet, and then to provide the police with any material generated. Adult members of paedophile hunter groups set up online profiles depicting the persona of a child in order to attract communication from persons with a sexual interest in children. Both appellants entered into sexual communications and arranged meetings with a decoy, in the belief that the decoy was a child. Both appellants were, at their arranged meetings, confronted by members of the paedophile hunter group who detained them before summoning the police. The communications between the appellants and their respective decoys were passed to the police.
In advance of trial, both appellants lodged preliminary and compatibility issue minutes, arguing that the actions of the paedophile hunter group were illegal in domestic law and that the police, prosecutor and court, in relying upon the evidence ingathered by the paedophile hunter group, had acted in a manner incompatible with the appellant's Arts 6 and 8 ECHR rights. The minutes were repelled. The appellants appealed.
On behalf of the first appellant it was argued that: (1) the prosecution was oppressive, an abuse of process and an affront to justice; (2) the first appellant had been entrapped; and (3) there was a breach of the first appellant's Arts 6 and 8 ECHR rights.
On behalf of the second appellant it was argued that: (1) the conduct of the paedophile hunter group was unlawful as the terms of RIPSA had not been complied with, rendering the obtained evidence inadmissible; and (2) the police, Crown and courts breached the appellant's Arts 6 and 8 ECHR rights by using the evidence obtained by the paedophile hunter group.
On behalf of the respondent it was argued that: (1) entrapment was confined to acts of the state in creating a crime with a view to prosecuting it, with the acts of private individuals incapable of resulting in a plea of entrapment; (2) it was not enough to support a plea entrapment that the decoy set up circumstances which provided a person with the opportunity to commit a crime; (3) there was no basis upon which to hold that this was one of the rare cases in which there were special circumstances which rendered a prosecution oppressive; (4) general awareness on the part of the police did not amount to authorisation by the police of the actions of the paedophile hunter groups; (5) RIPSA was not engaged where a decoy was not used as a covert human intelligence source by a public authority; (6) in relation to Art 8 ECHR there was no interference where a private individual, to whom a message had been sent, shared that message with others; and (7) esto there was interference, that interference was not by a public authority.
Held that: (1) the essential vice of entrapment was the creation of crime by the state for the purpose of prosecuting it (paras 37–40); (2) the character or motive of the reporter of a criminal act was collateral to whether the act was committed (paras 41–43); (3) in the absence of evidence of at least an unfair trick on the appellant whereby he was deceived and pressured, encouraged, or induced into committing the offences charged, being ones which he would not otherwise have committed, entrapment was not made out (paras 44–46); (4) there had been no interference by a public authority with the appellants' correspondence (paras 47, 48); (5) there had been no reasonable expectation of privacy or confidentiality in relation to appellants' communications with their decoys (para 49); (6) given the protections available under the domestic rules of fairness, there had been no unfairness in the proceedings in terms of Art 6 ECHR (para 51); (7) RIPSA did not apply where there was no element of direction or engagement by a public authority and there could be authorisation where the police were unaware of the decoys' activities until after the appellants' alleged criminal activities had been completed (paras 52, 53); and appeals refused.
Lawrie v Muir 1950 JC 19, Cook v Skinner1977 JC 9, Weir v Jessop (No 2)1991 JC 146, Brown v HM Advocate2002 SLT 809, Jones v HM Advocate2010 JC 255, HM Advocate v ARK2012 SCCR 549, HM Advocate v IP2017 SCCR 447, HM Advocate v Raeburn unreported, Procurator Fiscal, Dundee v PHP[2019] SC Dun 39, R v Looseley[2001] WLR 2060, Council for the Regulation of Healthcare Professionals v General Medical Council[2007] 1 WLR 3094, R v Walters unreported, R v TL[2018] 1 WLR 6037, Malone v UK(1985) 7 EHRR 14, Halford v UK(1997) 24 EHRR 523, MM and ors v Netherlands(2004) 39 EHRR 19 and Tchokhonelidze v Georgia(2018) ECHR 553referred to.
AD v Netherlands (21962/93) ECtHR, 11 January 1994, unreported
Adcock v Archibald 1925 JC 58; 1925 SLT 258
Advocate (HM) v ARK [2013] HCJAC 107; 2013 SCCR 549; 2013 SCL 901; 2013 GWD 30–594
Advocate (HM) v IP [2017] HCJAC 56; 2017 SCCR 447; 2017 SCL 877; 2017 GWD 23–391
Advocate (HM) v Raeburn Sh M O'Grady QC, Sh Ct (Edinburgh), 24 August 2018, unreported
Advocate (HM) v Withey [2017] HCJAC 47; 2017 JC 249; 2017 SCCR 325; 2017 SCL 657; 2017 GWD 21–340
Brown v HM Advocate 2002 SLT 809; 2002 SCCR 684
Cook v Skinner 1977 JC 9; 1977 SLT (Notes) 11
Copland v UK (62617/00) [2007] ECHR 253; (2007) 45 EHRR 37; 25 BHRC 216; 2 ALR Int'l 785; The Times, 24 April 2007
G, S and M v Austria (9614/81) ECtHR, 12 October 1983, unreported
Garamukanwa v UK (70573/17) [2019] ECHR 445; [2019] IRLR 853; [2019] 6 WLUK 109
Halford v UK (20605/92) [1997] ECHR 32; (1997) 24 EHRR 523; [1997] IRLR 471; 3 BHRC 31; [1998] Crim LR 753
Healthcare Professionals (Council for the Regulation of) v General Medical Council [2006] EWHC 2784; [2007] 1 WLR 3094; [2007] 2 All ER 905; [2007] LS Law Medical 237; (2006) 92 BMLR 153; [2007] ACD 29
Jones v HM Advocate [2009] HCJAC 86; 2010 JC 255; 2010 SCCR 523; 2010 SCL 1161; 2010 GWD 20–391
Kennedy v UK (26839/05) [2010] ECHR 682; (2011) 52 EHRR 4; 29 BHRC 341; [2010] Crim LR 868
Khan v UK (35394/97) [2000] ECHR 195; (2001) 31 EHRR 45; 8 BHRC 310; [2000] Po LR 156; [2000] Crim LR 684; [2000] IHRL 2609
Kopke v Germany (420/07) [2010] ECHR 1725; (2011) 53 EHRR SE26
Lawrie v Muir 1950 JC 19; 1950 SLT 37; 1949 SLT (Notes) 58
MM and ors v Netherlands (39339/98) [2003] ECHR 153; (2004) 39 EHRR 19
McGibbon v HM Advocate 2004 JC 60; 2004 SLT 588; 2004 SCCR 193
McKie v Strathclyde Joint Police Board 2004 SLT 982
Malone v UK (A/82) (1985) 7 EHRR 14
Marsh v Johnston 1959 SLT (Notes) 28; [1959] Crim LR 444
N v HM Advocate 2003 JC 140; 2003 SLT 761; 2003 SCCR 378
Potts v Gibson sub nom Potts v Procurator Fiscal, Hamilton [2017] HCJAC 8; 2017 JC 194; 2017 SLT 313; 2017 SCCR 109; 2017 SCL 222
Procurator Fiscal, Dundee v PHP [2019] SC Dun 37
Procurator Fiscal, Dundee v PHP [2019] SAC (Crim) 7; 2020 SLT (Sh Ct) 22; 2019 SCCR 315
R v Hardwicke and Thwaites [2000] EWCA Crim 60; [2001] Crim LR 220
R v Latif [1996] 1 WLR 104; [1996] 1 All ER 353; [1996] 2 Cr App R 92; [1996] Crim LR 414
R v Looseley sub nom Attorney General's Reference (No 3 of 2000) [2001] UKHL 53; [2001] 1 WLR 2060; [2001] 4 All ER 897; [2002] 1 Cr App R 29; [2002] HRLR 8; [2002] UKHRR 333; [2002] Crim LR 301
R v Marriner [2002] EWCA Crim 2855
R v Shannon [2001] 1 WLR 51; [2001] 1 Cr App R 12; [2000] Crim LR 1001
R v TL [2018] EWCA Crim 1821; [2018] 1 WLR 6037; [2019] 1 Cr App R 1; [2018] Crim LR 996
R v Walters (T20167262) Langstaff J, Crown Ct (Newcastle), 6 April 2017, unreported
Ribalda v Spain (1874/13) [2018] ECHR 14
Robertson v Keith 1936 SC 29; 1936 SLT 9
Shannon v UK (67537/01) [2005] Crim LR 133
Stuurman v HM Advocate 1980 JC 111; 1980 SLT (Notes) 95
Szabó and Vissy v Hungary (37138/14) [2016] ECHR 579; (2016) 63 EHRR 3
Tchokhonelidze v Georgia (31536/07) [2018] ECHR 553
Weir v Jessop (No 2) 1991 JC 146; 1992 SLT 533; 1991 SCCR 636
Whitehouse v Gormley [2018] CSOH 93; 2020 SCLR 27; 2018 GWD 31–388
Williams v Department of Public Prosecutions [1993] 3 All ER 365; (1994) 98 Cr App R 209; [1994] RTR 61; [1993] Crim LR 775
John Quinn was charged on an indictment in the sheriffdom of North Strathclyde at Paisley at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with offences related to attempted indecent communications with a child over the internet. On 29 April and 13 May 2019, the appellant argued a preliminary issue minute and a compatibility issue minute. On 21 May 2019, the sheriff (T McCartney) repelled the minutes but granted leave to appeal. The appellant appealed to the High Court of Justiciary.
Mark David Mathew Sutherland was charged on an indictment in the sheriffdom of Glasgow and Strathkelvin at...
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